The Hawaiian gazette., 1887-02-01
In The Supreme Court of the Hawa-
iian Islands--October Term 1885.
Jury Waived.
Before PRESTON, J.
In the matter OF the widening of Fort
street, Honolulu. H. Bradley's Appeal.


In the matter OF the widening of Fort
street, Honolulu. H. Bradley's Appeal.
DECISION.
This is one of six appeals brought against
the awards of Commissioners for assessing
compensation to be paid to the owners and
occupiers of property taken by the Govern
ment for the purpose of widening Fort
Street, Honolulu, and to determine the
amount of benefit accruing to each estate by
reason of such widening.
The facts being substantially the same in
all the cases it was agreed, that the matters
of law involved in this case should first be
determined and that the decision therein
should govern all.
In order to understand the nature of the
appeal it is necessary to consider the course
of legislation on the subject.
Sections 1884, 185, 1876 and 1877 of the Civil
Code are as follows:
Section 1874. Upon the request of fifty or
"more poll taxpayers, of any district, to the
Minister of the Interior, that new road be
'opened, or that an old road lie shut up in
"that district, said Minister may appoint a
Jury of twelve persons to decide on the
"propriety of ..the measure proposed, and
their decision, when agreed to by at least
mine OF said jury, may be acted upon by
''the road supervisor of such district"
"Section I85. In laying out any new road
cor highway, respect shall be had to the rri-
''yate vested rights Of property, which any
individual may have IN the land over which
''said road or highway shall be intended to
''pass. 1t shall be the duty of the road su-
''peryisor, Immediately after such new road
''or highway shall have been determined
upon, to cause notices 10 be posted along
'ithe line of the same, advertising the fact,
land calling upon all parties interested
-, 4l,nIp rl1JV, 10
'the nearest Circuit Judge; and it shall be
''the duty of such Circuit Judge, to forward
ga list of such claims to the Minister of the
interior"
"Section 186. Upon the receipt of such
"claims, the Minister of the Interior may
"appoint commission of three disinterested
persons, to assess the value of the private
property so required for the public use, and
"also the damages, if any, likely to be sus-
"tained by the owner, whose decision shall
determine the price to be given by the Gov
"ernment fer such private property; and said
commission shall send certified copy of
''their decision to the Minister of the Inte-
"rior, and another to the party making the
"claim."
Section 1S7. Upon the delivery of said
decision to the owner of the land, the prop
''erty assessed shall revert to the Govern
''ment for the public use intended, without
IuTlleE COuNeNdllCG, anu lIlS uOluCI VI SuCl
decision shall present the same to the Min;
sister of the Interior for adjustment, pur-
"suant to the provisions of the next succeed
'ing Section.
The law as it then stood, made no pro
vision for altering or widening TO ads or
highways, and it would seem that in the
cases provided for, the Minister was not au-
thoriZed to pay any claims until the amount
had been ascertalned by the Commissioners,
I ,1rrloA
mission to assess the amount payable to all
the claimants.
In the year 1870, an act was passed so
"provlde for the assessment of part of the
expense of constructing roads upon estates
benefited thereby"
Section l of this act provides that
Whenever a commission shall be appoint
| led within the electoral districts of Homo
! Zulu and Hllo, pursuant to the provisions of
! ''the 1S6th Section of the Civil Code, to as
''sess the value of private property, required
''for public use, in the laying out of new
| ''road or highway, the commission shall de-
''termine what estates are especially benefit
''ted by such road or highway land the amount
''of special benefit accruing to each"
Section provides that
1.-The commission shall award the proper
''tion of the whole expense of laying out and
! constructing the proposed road or highway,
(which ought to be assessed upon estates
benefited, and the proportion to be paid
''for, from the public treasury"
Section provides that
1.-The commission shall report, in writing
| ''to the Minister of the Interior, the whole
''amount which ought to be assessed upon
/ estates benefited, and the amount of
Especial benefit accruing to each estate: and
''thereupon, the Minister shall cause to be
! computed the rateable proportion of cost,
/ ''to be borne by each estate, in excess OF
''tho assessed value of any portion of the
! same estate, which may be required for the
| proposed highway"
The statue then provides for the filing of
/ the certificate of computation with the Reg
! istrar of Couveyances, and makes the amount
/ due to the Government a charge upon the
| estate. and provides for service of a copy of
! the certificate upon the owner of the estate,
| and for q sale of the property upon default
| in payment.
This statue provides for an appeal to the
! Supreme Court by any person aggrieVed, and
the appeal is brought by virtue of this
! statute.
In 1872, the law was altered in some most
essential particulars, and the mode of pro-
| cedure substantially altered.
| By this last mentioned law Sections 1874,
| 185, and 1S6, of the Civil Code are amended
| to read as follows:
1S4 "Upon the request of fifty or more
| 'tar-payers of any district to the Minister
/ ''Of the Interior, that a new road, HgIiiCay on
! "Street be opened or that an old road high.
| ''irqy or street be shut up or icidened on
! ''altered, or if it shall be made to appear, to
| ''he Minister Of the Interior IN any other
stray, that any road hghtray or street should
! ''be opened irideHed OF otherwise altered, the
! said Minister of the Interior shall request
| ''aHy Judge of a Court of Record to select a
| list of tlreutB-fOlfJ names from dJuOpG the